Duke   University   Libraries 

Minority  report 
Conf  Pam  12mo  #74 

D=naa7t7fls 


n 


mo 


m 


HOUSE  OF  REPRESENTATIVES,    May  28,    1864.— Ordered 
to  be  printed. 

[By  Mr.  Garl4nd,  from  the  Judiciary  Committee] 


MINORITY  REPORT 


OF    THE 


COMmTTEE  ON  THE  JUDICIARY, 

On  the  suspension  of  the  Habeas  Corpus,  by  act  of  February  \5th,  1864, 
of  t/ie  First  Congress  of  t/ie  Confederate  States ,  entitled  "A71  Act  to 
svspend  the  privilege  of  the  writ  of  habeas  corpus  in  certain  cases.'*'' 


When  the  question  of  repealing  the  above  entitled  act  was  pre- 
sented to  the  House  of  Representatives  at  an  early  day  of  this  ses- 
sion, we  were  not  disposed,  nor  arc  we  now,  to  open  this  vexed  and 
delicate  subject,  if  it  could  have  been  consistently  avoided.  Yielding, 
in  a  great  degree,  our  convictions  as  to  this  act,  we  agreed,  with  the 
rest  of  the  committee,  to  report  back  the  bill  seeking  to  repeal  such 
act,  with  the  recommendation  that  it  lie  upon  the  table.  We  were 
opposed,  upon  constitutional  convictions,  as  well  as  for  reasons  touch- 
ing the  expediency  of  the  measure,  to  the  passage  of  this  act.  But 
for  the  sake  of  harmony  and  unity  of  action,  and  in  order  not  to  dis- 
turb the  public  mind  upon  this  subject,  we  were  willing  for  the  act  to 
live  out  its  days  and  pass  silently  away.  And  we  certainly  hoped 
this  would  be  the  course  which  the  House  would  adopt.  The  ques- 
tion has,  however,  been  presented  to  the  House  in  different  forms,  and 
has,  by  the  House,  been  referred  to  the  committee,  on  the  message  of 
the  President  in  response  to  a  resolution  of  enquiry  adopted  by  the 
House,  We  still  believed  the  whole  matter  would  be  permitted  to 
pass  .without  any  discussion  of  the  question,  or  any  direct  action  of 
the  House,  and  our  desire  was  that  the  subject  should  be  so  disposed 
of.  But  the  majority  of  the  committee  deeming  it  their  duty  to  pre- 
sent-a  written  report  vindicating  the  act  of  the  15th  of  February, 
1864,  in  a  paper  opening -up  the  whole  field  of  discussion  and  argu- 


ment,  we  feel  it  to  be  a  duty  from  the  performance  of  which,  a  proper 
regard  to  the  dischfirge  of  the  offices  incumbent  upon  us  here,  will 
not  grant  us  a 'dispensation,  to  make  known  to  the  House  in  a  like 
formal  manner,  our  view's  upon  this  vital  question.  Differing,  as  we 
do,  from  most  of  the  reasoning  in  the  report  of  the  majority,  and  to- 
tally in  the  conclusion  arrived  at ;  and  in  fact,  agre-eing  in  little  else 
than  the  definition  of  what  is  callod  the  writ  of  habeas  corpus^  we  beg 
leave  here  to  enter  our  earnest,  solemn,  and  respectful  protest  to  that 
document  being  received  and  adopted  by  the  House  as  containing 
true  and  correct  principles  under  and  according  to  the  Constitution, 
"which  it  is  our  duty  to  protect,  as  well  as  the  usages  and  practices 
that  have  grown  up  under,  and  have  been  recognized  as  having  eijual 
force  and  eifect,  with  the  Constitution  itself. 

In  discussing  the  questions  arising  here,  we  do  not  deem  it  neces- 
sary to  go  back  into  history — in  the  dim  ante-chambers  of  the  past,  to 
search  for  evidences  of  the  origin  of  this  great  writ,  and  to  trace  its 
history  minutely  to  the  present  day.  Nor  do  we  thiiik  it  worth  while 
to  chant  peans  of  praise  to  this  bulwark  of  freemen's  rights.  It  is 
ot  no  small  consequence  for  us  to  know,  that  long,  lor^g  before  the 
celebrated  statute  of  31st,  Charles  II.,  this  writ  was  known  as  the 
remedy  for  deliverance  from  illegal  imprisonment — it  was,  in  fact,  a 
common  law  writ,  and  the  statute  of  Charles  II.  .only  confirmed  and 
extended  it.  [Third  BL  Com.  129,  id  135;  Crabb's-  history,  52 o.] 
This  statute  of  Charles  II.  enacted  no  new  principle  ;  it  put  forth  no 
new  doctrine.  For  as  Hallam,  in  his  constitutional  history,  says  : 
•*It  cannot  be  too  frequently  repeated,  that  no  poiwer  of  arbitrary 
detention  has  ever  been  known  to  our  Constitution  since  the  charter 
obtained  at  Runneyniede — the  writ  of  habeas  corpus  has  always  been 
a  matter  of  right."  Coming,  then,  as  it  does,  down  from  the  early 
history  of  the  mother  country  to  our  ancestors,  we  see  they,  with  a 
high  regard  and  appreciation  for  its  worth,  inserted  in  the  organic  law 
of  the  old  Ciovernment  just  such  a  provision  as  we  have  in  our  Con- 
stitution, touching  the  suspension  of  this  writ.  It  is  not  to  be  for-"' 
gotten  that  our  fathers  framed  the  Constitution  of  the  United  States 
amid  trying  and  wonc^erful  scenes.  They  had  met  tyranny  and  had 
fought  it  in  all  its  forms  and  shapes,  and  just  after  the  end  of  a 
**beastly  and  mad-brained  war,"  they  gave  to  the  country  this  con- 
stitutional security  and  protection.  So  characteristic  was  the  jeal- 
ousy of  our  people  in  an  early  day  over  the  legislative  action  to 
suspend  the  habeas  corpus,  thpugii  allowed  by  the  Constitution,  that, 
after  a  bill  to  do  it,  in  181)7,  s'eems  to  have  passed  the  Senate  of  the 
United  States,  through  all  its  readings  in  one  day,  and"  with  closed 
doors,  the  House  of  Representatives  rejected  it,  on  the  first  reading, 
by  a  vote  of  one  hundred  and  thirteen  to  nineteen,  [^ee  journals  of 
the  House,  25th  and  27th  January,  1807,]  Tiiis  was  done,  although 
the  bill  to  suspend  the  habeas  corpus  provided  it  should  be  done  only 
when  one  is  charged  on  oath  with  treason  or  misdemeanor  afi'ecting 
the  peace  of  the  IJnited  States,  and  imprisoned  by  warrant  on  au- 
thority of  the  President  of  the  United  States,  or  the  Governor  of 
ai  State  or  Territory.  It  was  not  deemed  prudent  to  suspend  it,  though 


fi 


in  that  mild  form,  conbidering  such  a  measure  at  best,  but  a  species 
of  dictatorship,  and  to  be  justified  only  by  extreme  peril  to  the  pub- 
lic safety.  So  universal  and  so  ifcarked  was  this  feeling  at  and 
during  these  periods  of  the  early  history  of  the  United  States,  Mr. 
J  efferson,  certainl}^  one  of  the  meet  prominent  men  in  all  thje  leading  acta 
and  measures  of  that  day,  and  the  founder  of  a  great  party,  whose 
followers  deemed  its  tenets  synonymous  with  the  welfare  and  hap- 
piness of  that  Government,  has  left  on  record  his  opinion  that  it  was 
much  wiser,  even  in  insurrections,  never  to  suspend  the  writ  of  ha- 
beas corpus.     So  strong  and  pointed  is"  his  language,  we  will  be  par- 

'  don6d  for  quoting  it  here.  Writing  to  Mr.  Madison  from  Paris, 
December  20,  1787,  touching  the  plan  for  Government  about  to  be 
submitted  to  the  States,  Mr.  J.  says  :  '*  I  will  now  tell  you  what  I 
do  not  like  :  first,  the  omission  of  a  bill  of  rights,  providing  clearly, 
and  without  the  aid  of  sophism,  for  freedom  of  religion,  freedom  of 
the  press,  protection  against  standing  armies,  restriction  of  monopo- 
lies, Me  eternal  and  unremitting  force  of  the  habeas  corpus  laws,''''  ^c.^ 
^'c.     [Second  volume  Memoirs  by  Thos.  J.  Randolph^  p.  247.]  Again 

.from  Paris,  February  7,  17SS,  to  Mr.  ^Donald  he"  writes,  after  express- 
ing the  hope  that  the  four  latest  State  Conventions  before  acceding  to 
the  Constitution  would  have  a  bill  of  rights,  he  says  :  *'  By  a  decla- 

^  ration  of  rights,  I  mean  one  which  shall  stipulate  freedom  of  reli- 
gion, freedom  of  the  press,  freedom  of  commerce  against  monopolies, 
trials  by  jnries  in  all  cases,  no  suspension  of  the  habeas  corpus,  no  stand- 
ing armies."  These  are  fetters,  he  says,  against  doing  evil  which  no 
honest  Government  should  decline,  [same  book,  p.  291.]  The  men 
of  that  day,  (and  there  were  giants  then,)  had  almost  this  same  feel- 
ing in  common  with  Mr.  Jefferson,  and  it  is  useless  for  us  to  present 
evidenc.es  of  thi&  to  this  House.  Coming  on  regularly  in  the  course 
of  time,  our  predecessors,  or  the  fathers  of  this  Government  still 
preserving  and  keeping  alive  this  sacred  love  for  this  writ,  inserted 
in  our  Constitution  the  restriction  we  have  in  article  one,  section 
nine,  clause  three.  This  was  done  at  a  time  when  theframers  of  this 
instrument  had  ^ust  left  a  malignant  and  tyrannical  power,  which 
threatened  to  destroy  this  as  well  as  all  the  other  valuable  safeguards 
of  the  old  Constitution.  They  were  engaged  in  building  a  substantial 
and  permanept  house  of  refuge  for  our  people,  in  view  of  the  early 
coming  of  a  storm,  not  charged  with  mere  sound,  but  bringing  with 
it  desolation  and  woe  in  every  terrible  shape.  It  will  not  do  to  say, 
they  knew  not  their  duties,  nor  that  they  were  not  aliye  to  the  re- 
sponsibilities of  the  hour.  For  they  claimed,  and  we  do  for  them, 
that  in  planting  themselves  at  Montgomery,  they  rescued  the  Con- 
stitution, from  utter  destruction,  and  preserved  in  ours  all  that  was 
Taluable  in  the  old  one.  The  people  of  the  Confederate  States  are 
no  less  watchful  of  their  rights  in  this  behalf,  than  were  they  of 
the  United  States  in  her  best  and  purest  days.  The  Legislatures  of 
two  proud  and  gallant  sister  States  of  this  noble  band  of  States,  (Mis- 
sissippi and  Georgia,)  -have  spoken  out  boldly  and  in  language  that 
cannot  be  mistaken  in  condemnation  of  this  act  of  Febjuary  15,  1864. 
Certainly  their^voices  arejiot  to  be  passed  unnoticed,  nor  are  their 


expiessious  to  be  unheeded.  They  express  a  regard  for  the  very 
rights  for  the  security  of  which  this  war  was  inaugurated,  felt  by  the 
whole  pulation  of  the  Confederacy^  We  share  this  feeling  with  them, 
and  when  they  or  we  cease  to  entertain  it,  they  as  well  as  ourselves, 
are  no  longer  fit  to  enjoy  those  liberties  for  which  the  people  are  now 
making  such  unheard  of  sacrifices.  And  we  arc  proud  to  know,  that 
in  this  respect,  we  are  sustained  by  one  whose  opinions,  not  merely 
on  acccount  of  his  position,  but  from  his  acknowledged  patriotism, 
judgment  and  ability,  are  entitled  to  the  greatest  weight ;  ^nd  so  apt 
is  his  language,  we  quote  it  in  part  justification  of  the  zeal  we  may 
display  in  this  investigation.  The  President,  in  his  message  of  the 
20th  May,  1864,  submitted  to  us  on  this  subject,  says:  ''The  sensi- 
tiveness exhibited  in  different  parts  of  the  country  to  the  legislation 
on  this  subject,  is  indicative  of  the  love  of  freedom,  which  is  innate 
among  the  people,  and  which  should  ever  be  cherished  as  the  sole 
guarantee  for  the  preservation  of  their  constitutional  liberties." 

Then,  it  will  not  be  wondered  at,  if  the  people,  and  some  or  all  of 
their  representatives,  should  scrutinize  closely  the  action  of  Congress, 
in  suspending  the  privilege  of  this  writ,  to  see  whether  or  not  they  have 
been  dealt  fairly  with,  in  thus  being  deprived  of  rights  so  long  and  so 
well  guarantied  to  them.  Without  any  further  allusion  to  the  benefits 
or  the  sacredness  of  this  writ,  it  is  sufficient  for  us  to  know,  acting  in 
our  representative  capacity,  that  the  Constitution  under  which  we 
hold  our  offices,  and  under  and  by  which  we  should  act,  has  preserved 
this  writ  intact  unless  in  rare  and  very  urgent  and  extreme  cases. 
If  there  were  nothing  else  lying  back  in  the  history  of  the  past,  this 
itself,  in  our  eyes,  would  give  it  character  and  importance  enough. 
When  this  Constitution  says  "  The 'privilege  of  the  writ  of  habeas  cor- 
pus shall  not  be  suspended,  unless  when  in  cases  of  rebellion,  or  in- 
yasion,  the  public  safety  may  require  it,"  this  is  sufficient  for  us  to 
know,  that  the  cases  requiring  the  suspension  must  be  urgent  indeed, 
and  clearly  and  unmistakably  made  out.  And  by  this  rule,  and 
some  others  laid  down  in  that  Constitution,  we  propose  to  examine 
this  act  of  February  15,  1664,  and  we  shall  attempt  to  show  that 
tried  by  the  Constitution,  what  our  convictions  tell  us  is  true,  that, 

let.  That  act,  in  many  of  its  essential  features,  is  utterly  at  war 
with  the  Constitution  ;  and 

2d.  There  was  not,  at  the  time  it  was  enacted,  any  such- emergency 
or  exigency  as  required  its  passa^^e ;  and  there  is  not  now  any  occa- 
sion for  its  being  continued  in  force.  * 

That  part  of  the  Constitution  from  which  Congress  derives  the 
power  to  suspend  the  writ  of  habeas  corpus  is  among  the  class  of  pow- 
ers, and  relates  to  none  others,  that  belong  to  the  legislative  branch  of 
the  Government — no  mention  is  there  made  of  the  executive  and  his 
powers.  Of  necessity,  as  it  is  generally,  if  not  universally,  conceded, 
Congress  is  the  judge  whether  the  public  safety  does  or  does  not  re- 
quire it,  and  the  judgment  of  Congress  on  this  point,  must  be  con- 
clusive. Should  the  public  safety  at  any  time  require  the  suspension, 
it  is  for  the  legislature  to  say  so.  That  question  depends  on  politi- 
cal considerations,  in  which  the  legislature  alone  is  to  decide.     The 


Congress,  representing  immediately  the  people,  and  having  the  law- 
making power  in  its  hands,  is  presumed  to  know,  at  all  times,  bet- 
ter than  any  person  or  persons,  the  necessities  of  the  country  ;  to  be 
better  able,  upon  a  given  state  of  facts,  to  form  an  opinion  consistent 
with  the  public  good,  and  to  feel  more  sensibly  the  great  responsi- 
bilities growing  out  .of  the  power,  was  wisely  entrusted  with  this 
authority.  This  question  has  been  so  fully  determined  by  Chief  Jus- 
tice Marshall  in  Bollman,  exparte,  4  Cranch,  95,  101,  and  aftewards  re- 
affirmed by  Chief  Justice  ■  Taney  in  the  famous  Merryman  case,  in 
1861,  that  argument  is  not  needed  to  bolster  up  this  proposition.  If, 
then,  Congres-  must  find  the  necessity  to  exist,  it  must,  under  the 
Constitution,  suspend  the  writ  itself.  It  is  a  legislative  act  to  be  ex- 
ercised under  a  delegated  power.  For  two  good  reasons,  then.  Congress 
cannot  in  the  least  delegate  this  power,  1st.  It  is  a  legislative  power, 
which,  under  the  Constitution,  cannot  be  exercised  by  a  separate  and 
distinct  branch  of  the  government,  having  and  possessing  totally  dif- 
ferent powers  from  the  legislature  under  the  Constitution.  2nd. 
Power  delegated  cannot  be,  by  the  agei^t  to  whom  it  is  given,  dele- 
gated to  another  ;  this  is  a  familiar  rule  as  .  old  as  the  law  itself. 
What,  then,  becomes  of  those  features  of  this  act,  which  authorize  the 
President,  or  others  to  be  named  by  him,  to  say  who  shall  be  arrested, 
and  who  shall  be  held  in  custody,  which  we  see  in  sections  1  and  3  of 
the  act?  If  the  judgment  of  Congress  be  conclusive,  where  does  the 
law-making  power  get  the  authority  to  so  limit  or  modify  its  judg- 
ment, as  to  reach  cases  only  to  be  named  by  the  President  or  by  per- 
sons 'designated  by  him  ?  That  authority  cannot  be  held.  The 
action  of  Congress  must  amount  absolutely  to  a  finding  of  the  facts, 
and  a  judgment  absolute  of  suspension,  or  its  action  amounts  to  noth- 
ing. When  Congress  says  the  writ  is  suspended,  there  is  an  end  of 
it,  and  nothing  more  is  to  be  done^  These  various  degrees  of  dele- 
gation of  power  are  not  to  be  tolerated;  they  avoid  the  very  respon- 
sibility in  the  discharge  of  duty  which  the  Constitution  imposed,  for  the 
wisest  of  purposes,  upon  the  law-making  power.  It  amounts  to  a 
delegation  of  legislative  power  to  the  Executive  and  his  appointees, 
which  destroys  in  fact  the  legislature  entirely  if  legitimately  followed 
out.  With  the  same  propriety  the  Congress  might  leave  it  to  the  Ex- 
ecutive, or  those  to  be  appointed  by  him,  to  levy  a  tax  upon  the  people, 
to  raise  and  support  armies,  and  any  and  every  other  power  delegated 
by  the  Constitution  to  the  Congress,  might  be  thus  given  him.  .  They 
stand  upon  the  same  foundation  exactly.  It  requires  much  elasticity 
of  construction  indeed,  to  hold  that  Congress  could  even  vest  this 
great  power  in  the  Executive,  but  it  is  beyond  comprehension  and  ex- 
planation, how  Congress  could  go  so  far  as  to  authorize  him  to  name 
agents  for  the  execution  of  this  trust,  as  delicate  and  important  a^ 
trust  as  was  ever  confided  to  man  anywhere  or  at  any  time.  This  was 
a  bold  and  long  stride  towards  obliterating  the  lines  of  demarcation 
existing  between  these  two  branches  of  the  Government. 

Buc  further,  not  merely  does  it  clothe  him  and  his  agents  with  cer- 
tain legislative  powers,  but  it  gives  them,  to  a  great  extent,  judicial 
poyrers  also.     They  must  say  who  is  to  be  arrested,  and  then  investi- 


gate  the  causes  of  arrest  afterwards.  .Relative  to  this,  in  the  first 
place,  we  have  to  say,  that  while  it  is  true  that  Congress  may,  under 
article  3,  section  1,  clause  1,  establish  inferior  courts,  yet  it  is  true 
that  the  Constitution  nowhere  permits  the  appointment  of  judges,  or 
those  who  are  to  hold  courts,  in  such  a  manner  as  is  designated  by 
this  act.  These  men*,  when  appointed,  must  clearly  exercise  the  duties 
of  judges ;  they  apply  laws  to  facts,  in  certain  cases,  and  find  a  judg- 
ment of  discharge  or  detention;  they  are  in  truth  judges,  and  as  such 
are  charged  with  serious  and  heavy  duties.  The  appointing  of  such 
officers,  or  of  officers  for  such  purposes,  was  unquestionably  intended 
to  be  by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  (art.  2,  section  2,  clause  '^,  of  th^  Constitution.)  if  they  were 
ever  to  be  appointed  at  all. 

Officers  entrusted  with  such  vast  powers  as  these  are  by  this  act, 
cannot,  by  any  latitudinous  construction  be  made  to  come  within  that 
class  of  inferior  ofiicers  mentioned  in  the  article  of  the  Constitution 
quoted.  They  are,  in  fact,  courts,  or  they  have  no  place  whatever  un- 
der our  Constitution.  If  they  are  courts,  they  are  made  to  take  the 
place  of  courts  which  are  already  known  and  recognized  under  the 
Constitution.  Then  the  two-fold  objection  is' presented  broadly  here 
to  this  delegation  of  power.  1  st.  The  supervisory  control  of  the  Sen* 
ate  over  executive  appointments  is  entirely  taken  away  or  discarded. 
This  has  always  been  deemed  a  wise,  judicious  and  valuable  check  in 
the  system  of  checks  and  balances  adopted  in  the  United  States,  and 
in  the  Confederate  States.  The  framers  of  the  old  Constitution  at- 
tached no  small  value  to  it.  Here  we  see  it  at  one  breath  swept  away, 
and  one  more  of  the  securities  of  the  people  is  suddenly  destroyed 
without  any  equivalent  or  show  of  one  in  lieu  of  it.  2d.  The  courts  of  the 
country,  intended  to  look  into  and  investigate  all  such  matters,  are,  with 
one  dash  of  the  pen,  broken  dc^vn  and  supplanted.  The  judiciary, 
one  of  the  independent  branches  of  the  Government,  co-equal  and 
co-extensive  with  the  others,  as  ail  agree,  is  dealt  a  severe  and  crush- 
ing blow  by  this  measure.  Let  us  look  at  it.  The  appointees  owe 
no  responsibility  to  any  one  but  the  President,  and  immense  powers 
affecting  the  life  and  liberty  of  our  people  are  given  to  them.  Is  not 
the  groundwork  here  laid  for  the  erection  and  maintaining  of  as  op- 
pressive and  tyranical  a  court  or  courts,  as  ever  disgraced  the  earth  ? 
The  star  chamber,  with  its  huge  and  enormous  powers  in  its  days  of 
life  and  vigor,  grew  from  the  simple  concilium  ordinarium,  which  at 
at  first  seemed  limited  and  circumscribed  enough,  but  so  gradually 
and  constantly  did  it  enlarge  its  sphere,  that  it  became  a  most  potent 
engine  of  mischief  and  destruction,  until  finally,  after  a  long  and  se- 
seyere  contest,  it  was  abolished,  but  not  until  after  many  an  innocent 
and  noble  citizen  had  given  up  his  liberty  and  his  life  upon  its  dese- 
crated altar.  And  let  us  ask,  in  all  candor,  does  this  not  look  like  re- 
turning to  that  odious  doctrine,  which  held  sway  in  the  time  of 
Charles  I.,  when  the  privy  council  would  recommit  persons 
brought  out  on  habeas  cqrpus  answering,  they  had  been  committed 
*^per  speciale  mandatum  regis  ?  Heath,  the  Attorney  General,  argued 
this  a  good  return,  as  the  king's  order  had  imprisoned  them,  and  he 


could  do  no  wrong,  and  upon  the  strength  of  these  four  words  ( per 
speciale  mandatum  regis,)  Nicholas  Hyde,  C.  J.,  sustained  the  commit- 
ments. Whatever  plausibity  there  might  have  been  for  this  course  in 
Englanti,  where  the  king  is  thought  to  be  infallibk,  it  can  find  no 
place  with  us,  where  the  duties  and  powersof  the  President  are  as 
clearly  defined  as  are  those  of  the  Congress.  But  we  are  not  far  re- 
moved from  this  point,  when  we  allow  persons  to  be  arrested  upon  the 
order  of  the  President,  or  Secretary  of  War,  or  the  general  ofiicer  com- 
manding the  trans-Mississippi  department,  and  then  allow  persons  to 
investigate  their  cases,  who  are  appointed  by  the  President,  responsi- 
ble to  him  alone,  and  knowing  in  their  ofiice  no  one  else.  This  is 
an  overshadowing  power  Congress  cannot  give,  to  any  one,  and  if  it 
could  do  so,  it  should  not. 

But  objections,  grave  and  overwhelming,  multiply.  In  the  classi- 
fication of  the  offences  for  which  arrests  are  to  be  made,  we  have 
thirteen  heads,  or  orders.  Those  named'in  the  Ist,  2d,  3d,»6th,  8th, 
9th,  KHh,  11th,  and  13th,  are  all  •crimes,  or  the  ingredients  and 
essential  elements  of  crimes,  for  the  punishment  of  which  ample  pro- 
vision is  already"  made,  from  the  arjrest  to  the  final  conviction  and 
punishment.  They  are  either  treason,  or  they  are  features  or  evi- 
dences of  treason.  Now,  by  committing  a  person  for  these  offences, 
or  any  of  them,  and  creating  this  special  tribunal  to  investigate,  we 
set  aside  courts  already  created,  and  clothed  with  full  and  ample  pow- 
ers to,  dispose  of  them.  These  persons  appointed  for  investigation 
can  easily — they  determining  the  question,  as  no  one  else  is  provided 
for  this  by  law,  whether  the  party  arrested  can  be  speedily  tried — put 
an  end,  practically,  to  all  the  rights  a  party  may  have  in  the  courts 
of  the. land.  When  these  persons  say  the  party,  is  properly  arrested, 
there  is  an  end  of  the  matter,  according  to  this  law.  The  door  is 
closed  to  any  further  investigation,  and  the  party  must  remain  until 
some  one  not  mentioned  brings  him  out.  One  of  these  judges,  or  in- 
vestigators,  wishing  to  crush  some  individual  by  saying  he  cannot  be 
speedily  tried,  and  on  looking  into  his  case  he  finds  he  ought  to  re- 
main in  confinement,  has  the  liberly  and  life  of.  the  citizen  effectually 
in  his  hands.  Noth-w^thstanding  the  judiciary,  provided  for  by  our 
Constitution,  and  in  which  we  all  take  so  much  just  pride,  we  see  it 
thrown  down  and  prostrate  in  the  dust  before  this  tribunal,  that  finds 
no  place  in  our  organic  law,  and  is  not  countenanced  by  the  genius  of 
our  system  of  government.  •  . 

As  to  the  offences  named  in  the  fifth  and  sixih  classifications,  the 
military  laws,  the  rules  and  articles  of  war,  are  ample  and  sufficient, 
and  there  is  no  necessity  for  giving  this  authority  as  to  them.  These 
are  military  offences  generally,  and  military  law  is  swift  and  potent 
enough  to  meet  them  all.  For  instauce,  there  we  have  spies  and  5ther 
emissaries  of  the  enemy.  We  all  know  that  the  laws  of  war  are  suf- 
ficient to  deal  with  them.  Andre  was  caught,  tried,  convicted  and 
executed  as  a  spy,  in  the  first  revolution,  under  the  rules  and  regula- 
tions of  the  army,  adopted  by  the  British  Parliament  more  than  a 
hundred  years  before  that  time. 

Of  the  fourth  and  twelfth  classifications  :  It  is  plain  to  us  Congress 


has  nothing  on  earth  to  do  with"  them — they  are  left  to  the  States. 
There  is  no  State  in  the  Confederacy,  we  dare  say,  that  has  not  a 
severe  statute  against  attempts  to  incite  servile  insurrection ;  and  so 
careful  has  the  President  been  on  this  question,  that  proper  regard 
might  he  had  and  paid  to  States'  rights,  in  his  message  submitted  to 
the  first  Congress,  January  12,  1863,  (page  1 1,)  he  recommended  that 
certain  persons,  taken  in  attempting  to  execute  Lincoln's  emancipa- 
tion proclamation,  be  turned  over  to  the  States,  to  be  dealt  with  under 
the  laws  of  the  States  providing  for  the  punishment  of  criminals  en- 
gaged in  exciting  servile  insurrections.  These  are  matters  peculiarly 
within  the  province  and  jurisdiction  of  the  State  tribunals.  And  so, 
too,  of  the  offences  of  burning  and  destroying  bridges,  railroads, 
telegraphic  communications.  These  are  matters  of  local  concern 
altogether.  The  strict  anti-internal  improvement  policy  of  this  Gov- 
ernment would  forbid  Congress  passing  any  law  on  these  matters. 
By  thest)  two  sections,  the  Congress  lays  the  foundation  for  a  serious 
collision  with  the  States.  In  our  somewhat  complicated  system,  col-' 
lisions  may  not  always  be  avoided,  but  certainly  it  is  wise  always  to 
try  to  avoid  them,  and  still  more  so  is  it  never  by  any  means  to  invite 
them,  or  to  put  on  the  appearance  of  inviting  them.  It  is  a  strange 
feature  in  this  law,  and  one  .that  cannot  be  maintained  at  all,  that  it 
seeks  to  imprison  persons  for  acts  not  crimes  by  any  laws  that  we 
know  of,  or  that  are  on  our  statute  book.  Nor  does  the  act  itself  make 
them  crimes,  in  legal  acceptation.  There  are  certain  acts  named  that 
do  not  come  within  the  meaning  of  treason,  nor  any  other  offence. 
Calling  these  offences  do  not  make  them  so.  An  offence  is,  in  law, 
an  act  for  which  any  criminal  punishment  may,  by  law,  be  inflicted. 
"Where  is  any  punishment  by  law  provided  for  many  of  these  acts  here 
named  ?  No  where  at  all.  Then  the  anomaly  is  presented  of  arrest- 
ing and  detaining  a  person  for  an  act  for  which  there  is  no  punish- 
ment provided.  This  surely  is  something  new  under  the  sun.  The 
object  of  all  arrests  and  holding  persons  is,  or  should  be,  to  bring 
them  to  punishment  for  offences  committed.  But  here  they  are  to 
be  arrested  and  held,  if  we  may  be  allowed  the  expression,  for  offences 
that  are  not,  in  truth,  offences 

But  we  propose  to  go  further,  and  examine  this  provision  with  re- 
gard to  the  suspension  of  the  writ  of  habeas  corpus,  in  connection  with 
other  constitutional  guarantees. 

In  the  Merryman  case,  above  referred  to.  Judge  Taney  held,  that 
even  if  the  writ  of  habeas  corpus  was  suspended  hy  the  act  of  Congress,  and 
a  party  not  subject  to  the  rules  and  articles  of  war  was  afterwards 
arrested  and  imprisoned  by  regular  judiciaL  process,  he  could  not  be 
detained  in  prison,  for  the  article  in  the  amendment  of  the  Constitu- 
tion, which  provides  for  a  speedy  and  public  trial  of  persons,  in  all 
criminal  prosecutions,  by  an  impartial  jury  in  the.  State  and  district 
wherein  the  crime  shall  have  been  committed,  &c.,&c.,  would  prevent 
it.  This  feature  of  the  old  Constitution  is  identical  with  article  1, 
section  9,  clause  17,  of  the  Confederate  States'  Constitution.  This 
part  of  the  Constitution  vanishes  at  once  if  the  enormous  power 
granted  by  the  act  of  suspension  can  be  upheld.     The  reasoning  of 


Judge  Taney  on  this  point  is  clear,  cogent  and  conviticing,  and  we 
commend  it  to  the  careful  consideration  of  Congress  and  the  country. 
lie  speaks  like  Nestor,  and  his  voice  is  as  an  oracle.-  He  exhibits 
almost  unparalleled  moral  sublimity  ia  thug 'speaking  out*for  the 
rights  of  man,  in  the*»face  of  bristling  bayonets,  under  the  very 
shadow  of  the  throne  of  the  tyrant,  and  amid  tlfe  corruptions  of  his 
court.  All  the  rights  given  by  this  clause  are  held  ly  him  to  be  sacred 
and  inviolable. 

Clause  sixteen,  of  same  section  and  article,  provides  for  indi'ctmeht, 
and  the  party  shall  not  be  deprived  of  life,  liberty  or  property,  with- 
out due  process  of  law.  The  great  judge,  in  the  case  just  noticed, 
held,  as  we  never  heard  doubted  until  lately,  process  of  law  meant 
judicial  process  !  By  a  strange  and  novel  mod^  of  ^reasoning  recently 
in  our  hearing,  we  have  heard  that  process  of  law  did  not  mean  jrro- 
cess  of  law.  We  think  laio  of  the  land  is  held  to  be  due  process  of 
law — a  trial  by  due  course  and  process  of  law ;  and  we  cite  Magna 
Charta,  c.  29,  2  Inst.  50.  Judge  Coulter  so  held  it,  in  one  of  the 
ablest  opinions  ever  delivered  on  this  continent,  or  any  other — 6  Penn 
St.,  (Barr's)  R.  86,  91.  Kent,  who  made  the  law  classic  in  this  coun- 
try, so  held  it — 2  Com.  13.  It  was  so  construed  in  two  leading  cases 
in  Tennessee — 2  Yerger  500,  10  id.  71.  In  North  Carolina,  in  Hoke 
vs.  Henderson,  4  Dev.  1.,  the  same  doctrine  is  laid  down,  and,  in  fact, 
we  know  not  where  it  is  not,  Beyond  all  cavil,  then,  the  words  "  due 
process  of  law,''"'  in  this  place,  cannot  mean  less  than  a  prosecution  or 
suit,  instituted  and  conducted  according  to  the  prescribed  forms  and 
solemnities,  for  ascertaining  guilt.  The  security  of  life  and  liberty 
lies  at  the  bottom  of  the  social  compact ;  and  to  say  that  this  grant 
of  legislative  power  to  suspend  the.  habeas  corpus  includes  the  right  to 
attack  the  liberty  of  a  person  in  this  way,  is  equivalent  to  saying  that 
the  people  have  delegated  to  their  servant*  the  power  of  defeating  one 
of  the  great  ends  for  which  the  Government  was  established.  In  other 
words,  the  people  put  it  in  their  agents'  hands  for  protection  and 
safety,  and  told  them  to  destroy  it  if  you  please!  Or,  again,  the 
people  made  a  free  Government,  and  empowered  the  legislature  to 
make  a  despotism  out  of  it  !  It  is  this,  in  plain,  simple,  and  unvar- 
nished English.  The  rights  vouchsafed  under  the  two  clauses  just 
cited,  are  dear  to  .us  by  virtue  of  their  age.  They  are  much  the  same 
as  the  third  and  fourth  artiol*^s  of  polity  that  .were  recognized  as  form- 
ing a  part  of  the^English  Government  when  Flenry  VII.  came  tO  the 
throne.  They  stand  now  as  imprescriptible  rights  of  freemen.  As 
they  prevented  King  and  Parliament  often,  in  their  fierce  and  san- 
guinary contests  for  power,  from  op^jressing  and  enslaving  the  people, 
we  should  treasure  them  as  our  birthright,  and  should  be  slow  indeed 
to  see  them  struck  down  by  action  of  Congress,  which,  as  much  as 
any  other  power,  was  intended  to  be  curbed  and  restrained  by  them. 
They  are  but  empty  and  unmeaning  songs,  if  Congress  can  at  any 
moment  lay  them  aside,  and  deny  them  to  the  citizen.  We  cannot 
yet  believe  this  to  be  withm  the  authority  of  Congress. 

Clause  15,  of  article   1,  seclion-9,  protects  the  people  from  'unrea- 
sonable searches  and  seizures,  and  provides  no  warrant  shall  isjiue  but 


10 

upon  probable  cause,  supported  by  oath  or  affirmation,  &c.  We  have 
been  told  that  the  issuing  of  a  warrant  was  merely  a  ministerial 
act  !  This  is  a  sad  mistake.  *  The  issuing  of  a  warrant  is  a  direct 
judiciTil  act.  A  warrant  is  defined  to  be  a  process  under  seal,  issued 
by  some  court  or  justice,  authorizing  the  o^cer  to  whom  it  is  directed 
to  arrest  or  apprehend  a  person  named  ;  {2?ul  Burrill^s  Law 
Die.  p.  1058.)  By  all,  our  usages  and  customs  in  this  and  the  old 
Government,  a  warrant,  as  named  in  the  Constitution,  occupied  this 
position — it  was  a  judicial  writ.  That  the  Privy  Council  of  England 
issued  them,  only  proves  they  w<3re  judicial  writs,  for  that  council 
clairaerl,  and  as  we  all  k'Low,  exercised  vast  and  extraordinary  judicial 
powers  for  a  long  period  of  time.  There  can  be  no  question,  then,  if 
this  clause  of  the  Constitution  means  anything,  that  the  arrests  pro- 
vided for  by  the  act  of  suspension  are  clearly  unconstitutional.  But 
let.  us  waive  this,  and  suppose  any  person,  upon  his  own  motion, 
whim  or  caprice,  might  issue  a  warrant  to  "arrest  a  party,  or  arrest 
him  without  any  wan  ant  at  all,  the  question  arises  can  he  detain 
him,  or  can  Congress- authorize  any  party  to  have  him  kept,  in  view 
of  clauses  16  and  17  of  article  1,  section  9,  already  discussed?  Just 
suppose  the  party  in  jail,  and  no  question  raised  as  to  how  he  cnme 
there,  what  is  to  be  done  with  these  guarantees  ?  This  is  an  enquiry 
of  moment,  and  we  should  be  glad  to  have  it  answered.  Take  it  in 
any  view  you  please  in  connection  with  these  three  clauses,  (15,  16 
and  17,)  of  equal  grade  and  dignity  with  that  authorizing  the  sus- 
pension of  the  writ,  this  act  of  15th  February,  1864,  violates  the 
Constitution  as  palpably  as  ever  a  statute  did  the  organic  law.  And 
we  submit  this  conclusion  to  the  House  and  the  country  with  un- 
shaken confidence,  that,  for  the  reasons  assigned,  it  is  correct  and 
perfectly  tenable. 

The  public  safety  did  .not  require,  as  far  as  Congress  knew,  the 
suspension  of  the  writ,  nor  does  it  now  require  this  suspension  to 
continue  When  we  say  Congress  must  be  the  judge  of  the  exi- 
gency demanding  this  action,  it  means  Congress,  upon  the  facts  pre- 
sented, must  determine  the  question  upon  its  own  knowledge,  and 
not  upon  the  mere  belief  or  opinion  of  the  Executive  or  any  one  else. 
Because  the  President  asks  for  the  suspension,  it  is  no  good  reason  in 
itself  that  the  writ  should  be  suspended.  The  facts  upon  which  he 
requests  the  suspension  should  be  laid  before  Congress  in  just  precisely 
the  same  shape  in  which  they  "came  to  him.  The  Congress  is  required 
to  know  the  facts,  and  to  be  able  to  refer  to  them  in  a  legal  form. 
This  power  cannot  be  exercised  upon  faith  or  in  trust.  As  well  may 
a  jury,  whose  province  it  is  'to  ascertain  the  existence  of  a  fact,  find 
this  fact  to  exist  because  i\\(i  judge  might  have  told  them  so.  The 
responsibility  upon  Congress  is  poorly  met  and  discharged,  when  they 
undertake  to  suspend  this  writ,  because  the  President  tells  them  sim- 
ply he  thinks  the  writ  ought  to  be  suspended  upon  information  he  has, 
which  information  does  not  come  before  Congress  to  be  there  sifted 
and  analyzed.  The  great  poet.,  in'  painting  the  wretched  condition  of 
our  parents  in  the  garden,  after  plucking  the  forbidden  fruit,  repre- 
gents  them  as  being  called   upon   in   a   solemn  and  awfiil   manner,  to 


11 

know  why  this  injunction  was   disobeyed,  and  vvhen   the  offence  was 

sought  to  be  placed  by  one  upon  the  other,  the  question  is  propounded, 
who  made  the  one  lord  and  master  of  the  other  that  this  should  be 
done  upon  his  order  ?  When  Congress  is  called  on  to  know  why  and 
\ipon  what  facts  this  action  was  had,  it  will  be  an  empty  response  to 
say  the  Executive  told  us  this  fact  existed,  though  there  was  no  evi- 
dence of  it  before  us,  and  we  cannot  present  you  the  testimony.  The 
President  may  well  be  mistaken  on  questions  like  the  present — he  may 
be  imposed  on  by  designing  persons.  Therefore,  the  necessity  for 
Congress  to  enquire  into  and  ascertain,  for  itself,  the  existence  of  the 
fact.  When  the  bill  in  Burr's  conspiracy  was  before  the  Senate  of 
the  United  States,  the  President  sent  to  Congress  all  the  papeiii,  let- 
ters, &c.,  and  other  evidences  in  his  possession,  with  his  message,  so 
that  Congress  might  see  and  judge  for  itself.  In  this  cape  nothing 
of  the  sort  was  done.  There  was  no  evidence  furnished  the  Congress 
by  the  President  beyond  the  statement  contained  in  his  message.  Cer- 
tainly the  Prseident  belived  all  there  stated  was  true,  and  it  might 
have  been,  but  this  does  hot  relieve  Congress  of  the  duty  to  examine 
and  ascertain  for  itself.  It  is  but  another  security  for  the  citizen 
that  Congress  must,  from  information  presented,  know  this  fact,  and 
the  simple  believing  or  knowing  it  by  another  will  not  answer  the  pur- 
pose. 

We  hold,  too,  that  Congress  must  not  have  any  doubts  on  this'sub- 
ject.  If  there  be  doubts  the  case  is  not  made  out.  The  case,  as  it 
calls  for  the  exercise  of  rare  and  unusual  authority,  must  be  made  to 
appear  by  clear  and  indubitable  proof.  The  very  section  of  the  Con- 
stitution conferiing  this  power,  shows'it  must  leave  no  room  for  doubt. 
The  doubt  existing  must  go  in  favor  of  the  Constitution.  This  posi- 
tion is  most  clearly  deducible  from  all  the  adjudications  on  this  sub- 
ject, as  well  as  from  all  the  analogies  furnished  by  legal  enquiries. 
And  we  hesitate  not  to  say,  if  Congress  had  doubts  on  the  existence 
of  the  exigency,  it  was  its  duty  to  nave  refused  the  suspension. 

In  the  absence,  then,  of  any  testimony  being  furnished  the  Con- 
gress, did  the  fact  exist  to  justify  this  suspension  all  over  the  Confed- 
ei-acy  ?  We  think  not.  And  before  proceeding  further  let  us  here 
call  attention  to  a  passage  in  the  President's  message,  submitted  Doc. 
7th,  at  the  session  during  which  this  act  was  passed: 

a  Pqj.  nearly  thne  years  this  Government  has  exercised  unquestioned 
jurisdiction  over  many  mvlions  of  willing  and  united  people.  It  has  met 
and  defeated  vast  armies  of  invaders,  who  had  in  vain  sought  its  submission, 
Suppoxted  by  the  confidence  and  affection  of  its  citizens^  the  Confederacy  has 
lacked  no  element  which  distinguishes  an  ind^pejident  nation,  according  to 
the  principles  of  public  law.  its  legislative,  executive  and  judicial  depart- 
ments,  each  in  its  sphere,  have  performed  their  appropriate  functions  with  a 
regularity  as  undisturbed,  as  in  a  time  of  profound  peace,  and  the  whok  en- 
ergies of  the  people  have  been  developed  in  the  organization  of  vast  armien^ 
while  their  rights  and  liberties  have  rested  secure  under  the  protection  of 
the  courts  of  justice. '^'^ 

Now,  what  great  convulsion  or  upheaving  has  occurred  to  mar  the 
beauty  and  symmetry  of  this  picture  ?     Certainly  the  public  would 


12 

not  have  been  unacq^uainted  with  such  startling  events  ?  The  state  of 
nffairs  presented  by  the  report  of  the  majority  on  this  point  is  cer- 
tainly eloomy  indeed.  But  it  does  not  accord  with  the  facts  as  the 
President  presents  them  in  his  message  early  in  that  session,  nor  do^s 
it,  we  are  of  the  opinion,  accord  with  the  true  state  of  the  case  then 
existing.  ^'  Look  first  upon  this  and  then  upon  that  picture,"  and  judge. 
It  is  true  there  was  an  invasion,  but  our  armies  were  in  good  condi- 
tion, and  full  of  hope;  many  parts  of  the. country  at  peace  and  undis- 
turbed, where  the  laws  were  in  force  and  where  no  danger  threatened. 
It  is  true  some  men  vrere  trying  to  test  their  legal  rights  upon  the 
different  laws  enacted  by  Congress  to  fill  up  the  army.  This  they 
hadlfe  right  to  do,  and  it  were  a  great  pity  that  they  should  6'ver  be 
deprived  of  this  right  in  a  country  claiming  to  be  under  a  free  gov- 
ernment. It  is  true,  beyond  question,  there  were  some  localities  in 
which  there  was  trouble,  and  may  be  strong  measures  were  tiecessary 
to  reach  the  offenders,  and  the  facts,  doubtless,  could  have  been  pre- 
sented in  an  authentic  shape  to  the  Csngress.  But  in  the  absence  of 
those  facts  Congress  should  not  act.  And,  besides,  to  reach  a  few 
localities,  or  a' few  individual  cases,  gave  no  sufficient  reason  for  this 
suspension  over  the  whole  Confederacy.  Now,  we  are  ready  to  admit, 
that  upon  the  facts  laid  before  the  Congress,  showing  wide-spread  dis- 
loyalty and  attempts  in  certain  localities  to  overthrow  the  Government, 
we  would,  undoubtedly,  have  voted  for  an  act  to  suspend  the  writ  as 
to  these.  The  bill  in  Burr's  rebellion  was  minute  as  to  locality  and 
as  to  crimes  or  offences  attempted.  Upon  the  proper  evidence  furn- 
ished, we  are  now  ready,  as  w^  have  been  all  the  time,  to  vote  for  an 
act  of  this  kind,  but  we  cannot,  and  we  do  not,  think  it  right  to  put 
the  whole  country  under  this  suspensiop  for  the  sake  of  punishing 
*J)ersons  here  and  there  in  certain  places. 

We  think  it  is  fact  well  established  by  the  past,  and  one  we  should 
not  forget,  that  the  intimidation  of  a  few  disaffected  persons  is  always 
dearly  bought  by  alienating  any  large  class  of  the  community,  or  by 
incurring  the  risk  of  alienating  them.  The  statement  of  the  report 
of  the  majority  means  simply  this,  and  it  was  startling  news  to  us, 
that  the  people  had  become  tired  and  sick  of  the  struggle,  and  were 
ready  to  abandon  it,  and  they  needed  this  coercive  und  harsh  measure 
to  keep  them  in  the  line  of  their  duty.  This  is  a  sad  commentary, 
indeed,  upon  the  people's  struggle,,  the  people's  war,  begun  and  pros- 
'  ccuted  to  secure  the  people's  rights.  We  must  remind  Congress  and 
the  country,  that  a  sort  of  instinctive  reasoning  always  tells  the  peo- 
ple what  may  be  the  learned  are  sometimes  unable  to  discern,  that  the 
truth  and  the  justness  of  a  cause  begin  to  be  very  suspicious  when  they 
stand  in  need  of  prisons  and  otlier  means  of  torture  to  eke  out  its 
evidences.  But  further,  those  very  disaffected  and  disloyal  persons 
sought  to  be  punished  by  this  act,  rejoice  at  the  announcement  of  the 
fact,  that  we  had  resorted  to  such  measures,  for  they  had  been  preach- 
ing our  tyranny  and  oppression,  and  they  had  been  saying  we 
were  no  better  than  the  northern  Government.  We  all  must  remem- 
ber what  a  pang  of  horror  seized  the  country  when  we  heard  of  the 
arbitrary  acts  of  the  Lincoln  Government  at  first — to  such  an  extent 


did  they  go,  that  a  southern  writer  of  much  fame,  in  speaking  of  the 
imprisonments  north  in  the  bastilcs,  said :  "one  universal  wail  then 
y/eiit  ui^  th'di  habeas  corpus  was  no  more."  En  the  indictments  which 
we  have  framed  before  the  civilized  world  against  our  enemy,  we  say, 
among  other  things,  the  writ  of  habtcs  corpus  has  been  suspended  ! 
We*  should  be  careful  and  not  lay  ourselves  liable  to  this  charge  too. 
There  is  great  danger  in  thus  attempting  to  speculate  upon  the  pa- 
triotism of  our  people,  as  many  deem  this  act  does,  of  driving  from 
us  a  large  class  of  persons  who,  in  truth  and  in  fact,  are  true  to  the 
cause,  and  who,  with  the  proper  course  pursued  towards  them,  would 
aid  and  assist  in  the  str.uggle  to  the  last.  For  there  can  be  no  doubt 
whatever,  that  the  continual  effort  and  alarm,  attendant  on  a  state  of 
constant  danger,  will  often  compel  nations,  the  most  attached  to  lib- 
erty, to  resort,  for  repose  and  security,  to  institutions  which  have  a 
tendency  to  destroy  their  civil  and  political  rights.  To  be  more  safe, 
they,  at  length,  become  willing  to  run  the  risk  of  being  less  free. 
The  great  moral  effect  upon  our  own  people,  upon  the  world  at  large, 
and  the  cause  of  rejoicing  to  the  north  this  measure  gives,  more  than 
countArbalance  all  the  good  effects  thiit  could  flow  from  it  for  years  to 
come.  While  it  cut  every  free  citizen  to  the  bone,  it  gave  the  world 
reason  to  believe  this  was  not  the  asylum  of  liberty  and  free  govern- 
ment we  bad  claimed  it  to  be,  and  it  stimulated  the  north  with  the 
conviction  that  we  were  well  nigh  worn  out,  and  the  war  could  be 
maintained  only  by  the  exercise  of  cruel  and  severe  power.  This 
presents  a  wonderful  state  cf  case,  when  we  reflect,  that,  in  the 
first  revolution,  that  good  man,  Washington,  advised  arrests  to  be 
made  only  in  the  support  of  the  civil  authorities,  and  the  orders  for 
arrests  in  the  western  insurrection  seem  to  have  emanated  ft-om  the  * 
federal  judge  of  the  Penn  district:  See  Findlay-s  History  JVestern  In- 
surrection, 144-200-204,  nor  in  the  rebellions  of  1787-94,  was  the 
writ  suspended  in  any  but  one  of  the  States;  and  Congress  refused  to 
suspend  it  in  Burr's  rebellion*? 

If  the  facts  did  not  then  exist,  they  do  not  now,  '  With  great  suc- 
cess to  our  armies,  our  people  buoyant  and  encouraged,  and  a  general 
effort,  warm  and  zealous,  to  aid  the  Government  in  everything,  we 
look  in  vain  for  any  evidences  of  disloyalty  to  such  an  extent  as 
would  justify  the  country's  remaining  under  this  suspension.  It  is 
true  Lee  is  threatened  with  a  large  and  maid  host  of  invaders — rthis 
we  all  expected.  And  it  is  true  Johnston  is  now  before  a  like  b;ind 
of  tfaurderers.  But  every  State  in  the  Confederacy  is  fully  and  fairly 
represented  in  our  two  armies,  to  the  full  quota,  and  have  been.  And 
the  wofk  of  death,  there  by  those  who  would  destroy  us,  need  not  be 
aggravated  by  oppression  under  our  own  laws  at  home.  Whatever 
clamors  there  may  be  in  localities  as  to  our  Government,  yet  no  State 
has  declined  or  refused  to  do  her  duty.  Georgia  and  Mississippi,  ** 
whose  Legislatures  have  expressed  their  convictions  upon  this  subject, 
have  come  up  at  all  times,  and  are  now  in  the  lines  with  their  brave 
men  to  be  given  up  as  sacrifices  to  liberty.  North  Carolina,  in  whose  " 
borders  it  has  been  often  said  there  is  an  alarming  disaffection,  stands 
high  on  the  roll  of  honor,  and  in  means  and  men,  has  contributed  as 


11 

one  holding  her  great  uame  should  contribute  Then  where  does  all 
this  trouble  exist?  Is  it,  in  fact,  in  existence  ?  Hbs  not  pur  Presi-'|i 
dent  been  misled  or  imposed  upon  ?  Then  let  our  courts  go  on,  per- 
mit this  confidence  of  the  people  to  live  untouched,  and  support  th« 
cause  so  dear  to  us  all — do  not  let  us  longer  distruj^t  the  judiciary ^f 
the  land — let  us  respect  the  laws  of  the  country  and  counsel  their 
supremacy — let  us  imitate  the  noMe  and  sniat-like -person,  Wash- 
ington, who,  as  said  by  a  oelebrated  Englishman,  even  afier  he  had 
made  the  lion  crouch  in  the  dust,  was  the  purest,  best  and  greatest  of 
men — he  alwLiys  enjoined  the  subordination  of  the  raiHtary  to  the  civil 
power,  and  accompanied  the  army,  in  person,  to  see  the  civil  suprem- 
acy upheld  and  vindicated.  Such  is  the  spirit  of  our  theory  of 
government,  and  a  departure  fi-om  it,  however,  small,  will  end  or>ly  in 
wrong  and  oppression.  ^ 

The  reply  we  sometimes  hear,  that  the  injury  is  small,  or,  there 
are  only  a  few  cases  in  which  any  mischief  is  done,  is  no  just  and 
sufficient  response.  The  great  mountains  are  disintegrated  by  small 
particles — the  sting  of  an  insect  upon  the  young  and  tender  sappling 
may,  in  after  years,  cause  the  wrSck  of  a  great  man-of-war.  Ilarap- 
den  was  assessed  only  twenty  shillings  of. ship  money,  yet  this  made 
an  impress  deep  and  lasting  upon  the  British  Government;  contributed 
no  little  to  bring  the  head  of  Charles  to  the  block,  and  rendered  the 
name  of  Hampden  immortal  wherever  his  mother  tongu^  is  spoken. 
Nor  does  it  me6t  the- question  to  say  it  was*  not  intended  that  this 
power  should  be  generally  executed — this  is  a  pretext  often  insidious, 
always  insecure,  and  tending  to  mask  the  approaches  of  arbitrary  Gov- 
ernment, •  although  the  best  of  intentions  may  have  prompted  the 
enactment  of  the  measure. 

It  is  asking  too  much  of  the  House  to  gi^e  credence  to  the  fact  that 
the  mere  act  suspending  this  writ  has  contributed  materially  to  our 
recent  successCvS.  Whafon  eartli  has  this  to  do  with  the  brilliant 
successes  of  Forrest,  in  Tennessee;  Taylor,  in  Louisiana;  Price,  in 
Arkansas;  l^innegan,  in  Florida?  If  it  has  had  atiy,  certai^^ly  there 
has  been  no  publication  of  the  fact.  We  apprehend  it  has  about  as 
much  to  do  with  these  victories  as  an  act  of  this  House  expelling  one 
of  its-members  for  disloyalty  would  have  in  bringing  the  war  to  an 
immediate  and  successful  end. 

It  is  not  a  fair  mode  of  argument  to  say  that  those  who  oppose  this 
suspension  dread  the  President,  and  have  no  confidence  in  him.  Thyj 
question  should  be  discussed  regardless  of  persons.  Were  the  twelve 
Apostles  in  his  place  we  should  f6el  just  e;^actly  as  we  do,  in  this 
respect,  towards  them  as  we  do  towards  our  President.  AVe  have  not 
this  power  to  give  Mr.  Davis  or  any  one  else — and  it  is  sufficient  for 
us,  believing,  as  we  do,  that  the- Constitution,  which  permits  us  to  sit 
here,  forbids  us  giving  the  power — or,  rather,  does 'not  itself  confer  it 
upon  us  to  be  given  to  any  one.  But  to  meet  this  point  directly — we 
have  confidence  in  him — he  has  not  asked  for  undue  powers  in  the 
course  of  his  administration — nor  do  we  believe  he  desires  to  make 
himself  a  despot,  or  to  overthrow  the  liberties  of  the  people — we  can- 
not see  how  he  could  desire  this — we.  voted  willingly  and  cheerfully 


15 

for  him  for  this  elevated  position,  and  we  do  not  regret  it.  We  know 
of  no  on«  who  could  have  managed  our  affairs  better.  We  hope  this 
quite  sufficient.  « 

Nor  is  it  right  and  proper  to  charge  those  who  oppose  this  act  with 
opposing  the  administration,  or  siding  with  those  who  do  oppose  it. 
We  have  upheld  and  do  now  uphold  the  Administration.  We  have 
voted  for  and  supported  all  the  leading  measures  of  Congress  to  sup- 
port and-  carry  on  this  war,  and  we  have  in  all  cases  advised  and 
counseled  our  constituents  to  obedience  to  laws,  which  even  did  not 
meet  with  our  approval,  in  order  to  secure  unity  and  harmony.  But 
in  the  discharge  of  a  great  constitutional  duty,  we  must  judge  of  it 
by  the  best^lights  God  has  given  us,  and  in  the  conscientious  effort  to 
meet  the  responsibility,  we  cannot  be  restrained  in  our  efforts  by  any 
charges  of  this  kind.  We  intend  to  support  the  xldministration — we 
deaire  it  to  live  and  work  out  our  destinies — secure  our  liberties,  pre- 
serve the  Constitution  unhaj-med  amid  the  crash  and  wreck,  which 
we  look  upon  as  the  best  gift  to  man  next  to  the  Good  Book  itself. — 
In  this  Government  we  must  not  forget  much  in  the  way  of  improve- 
ment has  been  promised  our  people,  and  its  every  act  will  be  closely 
watched  and  enquired  into.  As  the  promise  has  been  made,  its  per- 
formance is  looked  for.  The  remarks  of  Hallam  on  the  character 
and  reigm  of  William  III.  are  so  appropriate  we  cannot  refrain  from 
inserting  them :  '*  A  new  and  revolutionary  government  is  seldom 
dealt  fairly  with  Mankind,  accustomed  to  forgive  almost  every 
thing  in  favor  of  legitimate  prescriptive  power,  exacts  an  ideal  fault- 
lessness  from  that  which  claims  allegiance  on  the  score  of  its  utility; 
the  personal  feelings  of  its  rulers,  the  negligences  of  their  administra- 
tion, even  the  inevitable  privations  and  difficulties  which  the  nature 
of  human  aff^airs  or  the  misconduct  of  their  predecessors  create,  are 
imputed  to  them  with  invidious  minuteness;  those  who  deem  their 
own  merit  unrewarded,  become  always  a  numenous  and  implacable 
class  of  adversaries ;  those  whose  schemes  of  public  improvement 
have  not  been  followed  think  nothing  gained  by.  the  change,  and  re- 
turn to  a  restless  censoriousness,  in  which  they  have  been  accustomed 
to  place  delight."  These  are  well  worthy  of  consideration  as  being 
in  the  main  applicable  here  and. now.  Then,  in  short,  it  is  at  no  time 
supposed  the  President  desires  to  establish  a  despotic  power  over  the 
people.  Such  pov/er,  we  think,  could  never  have  been  the  waking 
dream  of  the  President ;  but,  as  the  slightes.t  inroads  upon  private 
rights  and  liberties  are  to  be  guarded  against  in  any  nation  that  de- 
serves to  be  called  free,  we  should  always  keep  in  view  not  only  that 
our  Constitution  is  the  paramount  law,  but- that  a  stab  at  it  is  a  blow 
at  the  Administration  and  the  liberties  of  the  people  besides.  The 
best  way  to  preserve  the  Administration  and  our  liberties  is  to  obey 
and  follow  the  Constitution.  We  cannot  believe  the  time  has  come 
when  the  conservation  of  ail  demands  the  sacrifice  of  the  legal  rights 
of  the  few  ;  *'and  it  'is  an  unhappy  consequence  of  all  deviations 
from  the  even  course  of  law,  that  the  forced  acts  o(  overruling  necea- 
eity  come  to  be  distorted  into  precedents  to  serve  the  purposes  of 
arbitrary  power."     Mr.  Davis  cannot  have  this  law  executed  in  per- 


16 

6011,  in  fact,  the  ve?y  delcgutiun  of  authority  to  others  contained  in 
the  law  takes  it  out  of  his  hands  ii^  many  instances.  So,  however 
much  may  be  our  confidence  in  him,  it  cannot  attach  to  all  those  ^vho 
are  charged. "with  the  execution  of  this  law.  It  creates  too  broad  a 
field  for  the  workings  of  bad,  cvij  and  malicious  feelings  over  the 
country.  The  evils,  too,  resulting  from  a  wrong  of  this  kind  are 
not  within  the  reach  of  a  remedy^no  reparation  can  be  made. 

This  brings  us  to  consider  the  last  featura  of  this  law  we  desire  to 
discuss,  and  to  it  we  invoke  the  special  attention  of  Congress.  ThjQ 
power  given  to  the  general  officer  commanding  the  trans-Mississippi 
Department  cannot  be,  for  reasons  we  have  already  advanced,  con- 
fided to  him.  It  substitutes  hiixi  in  the  place  of  Congress,  and  clothes 
him  with  judicial  powers  extraordinary  indeed,  and  for  which  we  find 
no  warrant  in  the  ConstitutiDn.  But  supposing  this  could  be  done, 
we  must  protest  against  it  in  vievv  of  the  reckless  and  inhuman  abuse 
of  power  heretofore  exercised  there  by  persons  in  command.  In 
General  Smith,  who  is  now  in  command  there,  the  people  across  the 
Mississippi  river  have,  as  we  believe,  full  and  implicit  confidence, 
both  in  his  ability  and  patriotism.  He  is  wise  and  discreet,  and  up- 
holds the  civil  tribunals  in  their  supremacy  over  the  military  author- 
ity. But  we  have  no  assurance'  as  to  how  long  he  will  remain  there  ; 
the  rapid  changes  in  the  fortunes  of  war  may  remove  him  jit  any 
time.  The  experience  of  these  people  under  his  two  immediate  pre- 
decessors is  too  bitter  to  reconcile  them  to  this  rule.  Their  acts  of 
oppression  and  misrule  are  written  upon  the  hearts  of  those  people  in 
letters  of  fire,  and  all  the  Fains  of  high  heaven  cannot  .obliterate 
them.  The  printed  report  of  General  Hindman  confesses  to  assump- 
tion of  power  on  his  paH  not  authorized  by  law,  and  seeks  to  justify 
the  same  on  account  of  the  condition  of  affairs.  •  And  he  would  seem 
to  intimate  that  if  such  measures  had  been  resorted  to  before,  the 
country  would  have  pj*ofited  by  them.  Such  is  always  the  language 
of  the  supporters  of  tyranny — where  oppression  docs  not  succeed,  it 
is  because  there  has  been  too  little  of  k.  Clarendon  thought  the  act 
of  Charks.II.  against  conventicbs  would  have  produced  beneficial 
results  if  vigorously  executed,  when,  in  truth,  the  jails  and  prisons 
were  filled  with  persons  gigainst  whom  this  act  was  aimed.  From  the 
previous  history  of  the  war  over  there  it  was  useless  to  have  given 
this  power,  because  the  generals  preceding  General  Smith,were  in  the 
habit  of  imprisoning  persons  without,  warrant,  without  offence 
charged — suspending  all  taw.  The  people  there  have  sufiered  untold 
wrongs  and  oppressions  by- virtue  of  these  usurpations.  And  so  far 
as  any  weakening  of  our  cause  in  that  qua^rter  is  concerned,  these 
acts  have  contributed  more  to  bring  it  about  than  all  the  efforts  of  the 
enemy.  It. is  a  long  ways  from  the  President  to  that  country,  and 
the  journey  is  diilicult  and  dangerous — deeds  are  done  there  that  can 
not  be  remedied  here — it  will  be  too  late.  Mr.  Davis  may  rebuke 
misrule  there,  as  he  has  done,  but  this  does  not  restore  the  injured  to 
their  rights,  nor  does  it  restore  the  confidence  destroyed  by  those  mis- 
deeds. Congress  should  think  well  and  maturely  on  this,  and  reflect 
upon  the  state  of  affairs  there,  before  sanctioning  this  suspension. 


17 

And  for  those  people  who  have  suffered  bo  much   under  this  ruldj  w© 
must  say  to  Congress,  **  No  more  of  this  Hal,  and  thou  lovest  me  /" 

The  above  are  the  reasons  that  have  brought  us  to  tj^  conclusion 
that  the  ad  of  Idth  February,  1B64.  has  no  constitutidRl  sanction, 
and  is  not  justified  by  the  facts  existing  at  the  time  of  its  passage^ 
nor  by  those  now  existing. 

The  report  of  the  majority  makes  no  recommendation.  We  make 
none,  and  will  not  unless  some  direct  action  is  proposed  to  be  taken 
as  to  this  measure.  In  that  event,  our  course  will  be  plain,  and 
direct.     Until  then,  we  leave  the  matter  with  the  House. 

This  report,  we  are  aware,  is  too  long  ;  but  the  importance  of  th« 
subject,  the  great  issues  at  stake  furnish  an  apology.  We  regard 
much  of  the  vitality  of  our  free  Constitution  as  depending  upon  this 
contest,  and  while  the  heart  of  the  country  throbs  with  deep  anxiety 
as  to  the  result,  this  decision  will  form  an  era  in  our,  history  remark- 
able, indeed,  and  never  to  be  forgotten.  We  have  prepared  this  re- 
port with  all  proper  respect  to  these  who  have  differed  with  us,  for  we 
labor  in  the  same  cause  and  with  the  same  ultimate  end  in  view.  For 
them  we  can  have  no  ill-feeling,  but,  on  the  contrary,  we  entertain 
the  kindest  emotions  towards  each  and  all  of  them.  We  respect  their 
opinions— the  subject  is  one  of  difficulty  and  of  doubt.  It  never 
fails  to  vex  the  best  minds  of  any  country  when  presented.  They 
may  be  right— we  may  be  wrong  ;  but  one  thing  is  certain,  this  re- 
port is  now  presented  under  a  deep  sense  of  the  solemn  responsibility 
resting  upon  us,  with  a  due  appreciation  of  the  interests  involved, 
with  a  proper  regard  to  the  perils  by  which  our  common  country  now 
finds  herself  surrounded,  and  with  the  conviction  of  a  conscientious 
discharge  of  the  trust  confided  to  us  by  constituents  of  freemen. 

In  this  fanatical  w^ar,  -waged  against  us,  we  need  not  doubt  of  the 
result  if  we  are  true  to  the  rights  of  the  people — true  to  the  Consti- 
tution we  are  sworn  to  support,  which  is  the  first  and  paramount  duty 
of  the  legislator.  Let  each  branch  of  the  Government  square  its 
action  by  this  instrument,  and  the  patriot  soldiers  in  the  field  will 
win  us  a  peace  at  no  distant  day — a  proud,  permanent  peace — and 
our  young  Confederacy  will  come  forth  "  a  noble,  puissant  nation, 
rousing  herself  like  a  strong  man  after  sleep,  and  shakmg  her  invin- 
cible locks" — her  sun  will  ride  high  above  us,«  blazing  in  its  meridian 
like  the  sun  of  heaven;  but,  unlike  that  sun,  it  will  know  no  night. 
^Respectfully  submitted, 

A.  H.  GARLAND. 
2  B.  S.   GAITHER. 


x»4i  tfA  ha  A 


peRTTiAlife® 

pH  8.5 


'i 


